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1907 


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HSLATIVE   REFERENCE  DEPARTMENT 
COMPARATIVE  LEGISLATION  BULLETIN 
No  IT 


THE  INITIATIVE  AND  REFER- 
ENDUM 

State  Legislation 


MARGARET  A.  SCHAFFNER 


MADISON,  WISCONSIN 
SEPTEMBB*.  1907 


INTRODUCTION 


In  the  legislature  of  1907  the  following  bills  and 
resolutions  relating  to  the  initiative  and  referendum 
were  introduced :  Assembly  bills  326,  357,  443 ;  Sen- 
ate bills  135,  177;  Assembly  joint  resolutions  33,  37, 
84;  Senate  joint  resolution  1'i . 

A  handy  compilation  of  laws  and  references  relating 
to  this  subject  will  be  of  great  use  to  future  legisla- 
tures. 

CHARLES  MCCARTHY, 
Chief  Legislative  Reference  Department 
Wisconsin  Free  Library  Commission. 


THE  INITIATIVE  AND  REFER- 
ENDUM 


STATE 


MARGARET    A.    SCHAFFNER 


COMPARATIVE  LEGISLATION  BULLETIN— No  11— SEPTEMBER  1907 
Prepared  with  the  co-operation  of  the  Political  Science  De- 
partment of  the  University  of  Wisconsin 


WISCONSIN  FREE  LIBRARY  COMMISSION 

LEGISLATIVE  REFERENCE  DEP'T 

MADISON    Wis. 

1907 


Ken 


CONTENTS 


Page 

REFERENCES 3 

H I STOR  Y    

Local  legislation   8 

Adoption   of  state  constitutions 6 

Slate    legislation    6 

Special   constitutional   provisions    7 

Recent  constitutional   amendments    8 

The  advisory    system    8 

Validity  of  the  initiative  and  referendum 9 

LAWS    AND    JUDICIAL   DECISIONS 10 

Foreign    countries    10 

United    States    13 

SUMM  ART     24 

Scope   of   Direct    State   Legislation 24 

Constitutional    law    24 

Statutory    law    24 

Public   opinion    28 

Party    policy     20 

Limitations  on   the  Resubmfssion  of  Pleasures 20 

Procedure  for  Initiative  Petitions 27 

Publicity    27 

Completion   of  petition    27 

Transmission  of  measure  to  legislature 28 

Provision   for  competing   bills 29 

Reference    of    initiative  measures  and  of  competing  bills  29 

1'roredure  for  Reference  of  Measures 20 

Reference  by  petition 29 

Reference  by  legislative  action 30 

Duty  of  officials  30 

Enactment  of  Referred   Measures 31 

Kh'ctions  for  submission  of  measures  31 

Veto   power    31 

When    operative    31 

Penalty's    .  32 


REFERENCES 


AIGLER,  RALPH  W.  Validity  of  the  initiative  and  refer- 
endum. Michigan  Law  Review,  May,  1907,  vol.  '3,  p. 
562-6. 

A  discussion  of  recent  decisions  in  the  United  States. 

BORGEATJD,  CHARLES.     Practical  results  which  have  attended 
the    introduction    of   the    referendum    in    Switzerland. 
Arena,  May,  1907,  vol.  37,  p.  482-6. 
Discusses  the  effect  of  the  referendum  on  social   legislation. 

BRYCE,  JAMES.  American  commonwealth.  3rd  ed.  New 
York,  1905.  2  vols. 

(iives  historical  and  critical  data:  ch.  39,  Direct  legislation 
by  the  people. 

COMMONS,  JOHN  R.  Proportional  representation  with  chap- 
ters on  the  initiative,  the  referendum,  and  primary 
elections.  2nd  ed.  New  York,  1907. 

Describes  the  initiative  and  referendum  in  Switzer'and  and 
in  the  United  States :  app.  3,  Direct  legislation— the  people's 
veto.  p.  291-310. 

GREAT  BRITAIN.  Parliamentary  debates.  June  24,  1907, 
vol.  176,  no.  7. 

Discusses  the  question  of  introducing  the  referendum  to  set- 
tle disputes  between  the  two  houses  of  Parliament,  p.  911, 
922-3. 

OBERHOLTZER,  ELLIS  P.  The  referendum  in  America.... 
New  York,  1900. 

An  historical  and  critical  discussion  :  ch.  4.  The  referendum 
on  the  entire  constitution  ;  ch.  15.  The  initiative  in  America. 

PAINE,  ROBERT  TREAT,  JR.  Massachusetts  historic  attitude 
in  regard  to  representative  government:  the  teach- 
ings of  the  fathers.  Arena,  July,  1907,  vol.  38,  p.  14-18. 

An  historical  discussion  of  "the  right  to  instruct"  repre- 
sentatives. 


THE  INITIATIVE  AND  REFERENDUM 


PABSONS,  FRANK.  The  city  for  the  people.  Philadelphia, 
1901. 

An  historical  and  critical  discussion  of  direct  legislation  in 
ch.  2,  p.  255-306. 

POST,  Louis  F.  The  initiative  and  referendum.  (In  Na- 
tional Municipal  League,  Proceedings  of,  1906,  p. 
363-81). 

A  brief  survey  of  the  development  of  the  initiative  and 
referendum  in  the  United  States. 

SHIBLET,  GEORGE  H.  Suggestions  for  the  Oklahoma  consti- 
tution  criticism  of  the  Oregon  system.  Referendum 

News,  Aug.,  1906,  vol.  1,  no.  10,  p.  5-8. 

Shows  the  desirability  of  presenting  initiative  measures  to 
the  legislature  for  the  taking  of  testimony  and  the  framing 
of  competing  measures. 

SULLIVAN,  J.  W.    Direct  legislation  through  the  initiative 
and  referendum.    New  York,  1893- 
An  excellent  presentation  of  direct  legislation. 

SWITZERLAND — BUREAU  OF  FEDERAL  STATISTICS.  Les  vota- 
tions  cantonales  depuis  1890  (Die  kantonalen  Volks- 
abstimmungen  seit  1890).  Berne,  18&7. 

A  statistical  summary  of  the  votes  on  initiative  and  refer- 
endum measures  in  Switzerland  from  1890  to  1897. 

HOTTED  STATES,  SENATE.  Direct  legislation;  papers  by  Elt- 
weed  Pomery  and  others.  55th  Cong.  2nd  sess.  Sep' 
ate  doc.  no.  340.  (In  serial  no.  3615.) 

An  extensive  collection  of  arguments  and  digest  of  litera- 
ture on  the  subject. 

UNITED  STATES,  HOUSE  OF  REPRESENTATIVES.  Referendum 
and  initiative,  by  Arthur  S.  Hardy.  57th  Cong.  2nd 
sess.  House  of  Representatives,  doc.  no.  1,  p.  482-94. 
(In  serial  number  4440.) 

A  detailed  report  on  direct  legislation  In  Switzerland,  made 
to  the  department!  of  state  by  the  American  minister  to 
Switzerland  in  June,  1902. 

VINCENT.  JOHN  M.  Government  in  Switzerland.  New  York, 
1900, 

Discusses  the  operation  of  the  initiative  and  referendum  in 
Swltzer'and.  also  gives  table  of  Cantons  employing  direct 
legislation,  p.  72-4,  84-90.  188-199,  and  362. 


HISTORY 

The  "Initiative"  and  the  "Referendum"  are  new 
terms  for  old  institutions. 

The  initiative1  may  be  defined  as  the  power  the  people 
reserve  to  themselves  to  propose  laws  and  to  enact  or 
reject  the  same  independent  of  the  legislature. 

The  referendum1  may  similarly  be  described  as  the 
power  the  people  reserve  to  themselves  to  approve  or 
reject  any  act  passed  by  the  legislative  assembly. 

The  forms  of  the  initiative  and  the  referendum  may 
be  described  as  optional  or  obligatory  in  their  opera- 
tion upon  the  electorate,  and  as  advisory  or  mandatory 
in  their  operation  upon  the  legislature. 

The  referendum  is  obligatory  when  a  law  must  be 
submitted  to  the  people,  and  optional  when  a  law  is 
submitted  only  upon  petition  by  a  certain  number  of 
voters. 

Under  the  mandatory  initiative  and  referendum,  the 
direct  vote  of  the  people  is  conclusive'  in  the  enactment 
of  legislation.  Under  the  advisory  system,  the  voters 
can  instruct  their  representatives  by  direct  ballot.  To 
make  the  system  effective  it  is  necessary  to  pledge  rep- 
resentatives to  obey  the  will  of  their  constituents  when 
expressed  by  referendum  vote. 

Public  opinion  laws  merely  secure  the  expression  of 
public  opinion  on  questions  of  public  policy. 

1  Compare  the  definitions  in  the  constitutions  of  Mont.  Const. 
(Amend.  1906>  art.  5.  sec.  1  :  Okla.  Const.  1907.  art.  5,  sec.  1 ; 
Ore.  Const.  (Amend.  1902 >  art.  4.  sec.  I:  S.  D.  Const.  (Amend. 
1898)  art.  3.  sec.  1  :  and  in  the  proposed  amendments  for  Me.  Re- 
solves. 1907.  c.  121  ;  Mo.  Laws.  1907.  p.  452 ;  and  N.  D.  Laws, 
1907.  p.  451. 


6  THE  INITIATIVE  AND  REFERENDUM 

Local  legislation 

The  Swiss  Landesgemeinde  illustrates  an  early  use 
of  direct  legislation  in  local  affairs.  The  old  New 
England  town  meeting,  where  measures  were  proposed 
and  adopted  or  rejected  at  the  option  of  the  electors, 
affords  another  typical  example. 
Adoption  of  state  constitutions 

The  state  wide  referendum  for  the  adoption  of  state 
constitutions  is  a  familiar  institution  in  the  United 
States. 

The  present  constitution  of  Massachusetts,  adopted  in 
1780,  was  the  first  in  this  country  to  be  submitted  to  a 
direct  referendum  vote. 

At  the  present  time  Delaware  is  the  only  state  in  the 
Union  in  which  a  referendum  is  not  required  for  the  adop- 
tion of  constitutional  amendments. 

State  legislation 

The  right  to  instruct  representatives  was  commonly 
exercised  before  the  adoption  of  written  constitutions 
in  this  country. 

The  constitution  of  Massachusetts,  adopted  in  1780,  eoc- 
pressly  asserts  the  right  of  the  people  "to  give  instruc- 
tion to  their  representatives."  In  1783  the  instructions 
from  Boston  ran:  "It  is  our  unalienable  right  to  commun- 
icate to  you  our  sentiments,  and  when  we  shall  judge 
necessary  or  convenient,  to  give  you  our  instructions  on 
any  special  matter,  and  we  expect  you  will  hold  your- 
selves at  all  times  bound  to  attend  to  and  to  observe 
them." 

After  the  adoption  of  written  constitutions,  judi- 
cial decisions  generally  concurred  in  the  doctrine  that 
the  legislative  assembly  had  no  authority  to  redelegate 
the  legislative  power  which  was  constitutionally  vested 
in  that  body.  Accordingly  the  legislature  had  no 
authority  to  refer  the  adoption  or  rejection  of  a  general 
law  to  the  people  of  the  state. 


THE  INITIATIVE  AND  REFERENDUM  1 

For  judicial  decisions  on  this  point,  compare  the  follow- 
ing cases:  Thome  v.  Cramer,  1851,  15  Barb.  (N.  Y.), 
112;  Barto  v.  Himrod,  1853,  8  N.  Y.,  483;  People  v.  Collins, 
1854,  33  Mich.,  343;  State  v.  Copeland,  1854,  3  R.  I.,  33; 
Santo  v.  State,  1855,  2  la.,  165;  State  v.  Hayes,  1881,  61 
N.  H.,  264. 

For  a  contrary  view,  see  State  v.  Parker,  1854,  26  Vt., 
357. 

Special  constitutional  provisions 

The  adoption  of  constitutional  provisions  which  ex- 
pressly require  popular  ratification  or  rejection  of 
legislative  acts  on  specified  questions,  is  the  next  step 
in  the  history  of  direct  legislation  in  the  United  States. 

Provisions  for  the  obligatory  state  wide  referendum 
on  special  questions  are  found  quite  generally  in  our 
state  constitutions.  They  cover  a  variety  of  questions 
including  suffrage,  state  boundaries  and  annexations  of 
territory,  the  location  of  the  seat  of  government  and  of 
state  institutions,  apportionment,  the  incurring  of  state 
indebtedness,  the  loaning  of  the  state  credit,  banks  and 
banking,  state  aid  to  railways,  taxation,  appropriations, 
sale  of  school  lands,  and  provisions  for  education. 

For  typical  illustrations  of  the  obligatory  referendum 
compare  the  following  constitutional  provisions: 

Suffrage.  Col.  Const.  1876,  art.  7,  sec.  2;  N.  D.  Const. 
1889,  art.  5,  sec.  122;  S.  D.  Const.  1889,  art.  7,  sec.  2; 
Wis.  Const.  1848,  art.  3,  sec.  1. 

State  boundaries  and  annexations  of  territory.  W.  Va. 
Const.  1872,  art.  6,  sec.  11. 

Location  of  seat  of  government.  Col.  Const.  1876,  art. 
8,  sec.  2;  Kan.  Const.  1859,  art.  15,  sec.  8;  Mont.  Const. 
1889,  art.  10,  sec.  2;  Ore.  Const.  1857,  art.  14,  sec.  1;  Pa. 
Const.  1873,  art.  3,  sec.  28;  S.  D.  Const.  1889,  art.  201; 
Wash.  Const.  1889,  art.  14,  sec.  1. 

Location  of  state  institutions.  Tex.  Const.  1876,  art.  7, 
sees.  10  and  14;  Wyo.  Const.  1889,  art.  7,  sec.  23. 

Apportionment.    W.  Va.  Const.  1872,  art.  6,  sec.  50. 

Public  credit.  Cal.  Const.  1879,  art.  16;  Col.  Const. 
1876,  art.  11,  sec.  5;  Id.  Const.  1889,  art.  8,  sec.  1;  111. 
Const.  1870,  art.  4,  sec.  18;  la.  Const.  1857,  art.  7,  sec.  5; 


8  THE  INITIATIVE  AND  REFERENDUM 

Kan.  Const.  1859,  art.  11,  sec.  6;  Ky.  Const.  1891,  sec.  50; 
Mo.  Const.  1875,  art.  4,  sec.  44;  Mont.  Const.  1889,  art.  13, 
sec.  2;  N.  J.  Const.  1844,  art.  4,  sec.  6;  N.  Y.  Const 
(Amend.  1905)  art.  7,  sec.  4;  R.  I.  Const.  1844,  art.  4, 
sec.  13;  S.  C.  Const.  1895,  art.  10,  sec.  11;  Wash.  Const 
1889,  art.  8,  sec.  3;  Wyo.  Const.  1889,  art.  16,  sec.  2. 

Banks  and  banking.  111.  Const.  1870,  art  11,  sec.  5;  la. 
Const.  1857,  art.  8,  sec.  5;  Kan.  Const.  1859,  art  13,  sec. 
8;  Mo.  Const.  1875,  art  12,  sec.  26;  and  Wis.  Const  1848, 
art.  11,  sec.  5.  Wisconsin  provides  for  a  double  refer- 
endum, first,  to  determine  whether  a  law  shall  be  sub- 
mitted, and  then,  by  a  second  referendum,  whether  the 
law  submitted  shall  be  adopted. 

State  aid  to  railways.  Minn.  Const.  (Amend.  1860)  art. 
9,  sec.  2. 

Taxation.  Col.  Const.  1876,  art.  10,  sec.  11;  Id.  Const 
1889,  art.  7,  sec.  9;  111.  Const.  1870,  art  4,  sec.  33;  Mont. 
Const.  1889,  art.  12,  sec.  9;  Utah,  Const  1895,  art.  13,  sec.  7. 

Appropriations  for  public  buildings.  Col.  Const.  1876, 
art  11,  sees.  3-5;  111.  Const.  1870,  art.  4,  sec.  33. 

Sale  of  school  lands.     Kan.  Const.  Ifco9,  art.  6,  sec.  5. 

Provisions  for  education.  Tex.  Const.  1876,  art.  7,  sees. 
10  and  14. 

Recent  constitutional  amendments 

Within  recent  years  a  number  of  states  have  adopted 
constitutional  provisions  establishing  the  initiative  and 
referendum  for  general  state  legislation.  These  amend- 
ments provide  for  the  optional  initiative  and  referen- 
dum, whereas  the  older  constitutional  provisions  for 
the  referendum  on  special  state  questions  are  obligatory. 

For  recent  constitutional  provisions  for  direct  state 
legislation,  see  S.  D.  Const  (Amend.  1898)  art.  3,  sec. 
1;  Utah,  Const.  (Amend.  1900)  art.  6,  sees.  1  and  22;  Ore. 
Const.  (Amend.  1902)  art  4,  sec.  1;  Nev.  Const  (Amend. 
1904)  art.  19,  sees.  1  and  2,  (provides  referendum  only); 
Mont.  Const.  (Amend.  1906)  art.  5,  sec.  1;  Okla.  Const, 
1907,  art.  5,  sees.  1-4,  6-8,  and  art.  24,  sec.  3. 

For  proposed  constitutional  amendments,  see  Me.,  Re- 
solves, 1907,  c.  121;  Mo.,  Laws,  1907,  p.  452-3;  N.  D.,  Laws, 
1907,  p.  451-3. 

Advisory  systems 

The  difficulty  of  securing  constitutional  amendments 


THE  INITIATIVE  AND  REFERENDUM  9 

for  the  initiative  and  referendum  has  led  to  the  devel- 
opment of  other  methods  for  securing  at  least  partial 
systems  of  direct  state  legislation. 

Public  opinion  laws.  A  public  opinion  system  was 
enacted  in  Illinois  in  1901.  The  electors  of  that  state 
have  voted  upon  a  number  of  legislative  questions; 
but  as  thg  candidates  for  the  legislature  were  not 
pledged  to  obey  the  wishes  of  their  constituents,  these 
expressions  of  opinion  have  not  been  very  effective  in 
securing  the  legislation  desired. 

See  111.  Laws,  1901,  p.  198. 

The  advisory  system  within  parties.  The  advisory 
system  within  the  parties  at  primary  elections  was 
adopted  in  Texas  in  1905. 

See  Tex.  Laws.  1905.  c.  11,  sec.  140. 

Validity  of  the  initiative  and  the  referendum 

The  validity  of  legislation  for  the  initiative  and 
referendum  has  been  sustained  in  a  number  of  recent 
court  decisions. 

In  1903  the  supreme  court  of  Oregon  held  that  the 
initiative  and  referendum  amendment  to  the  constitu- 
tion did  not  abolish  nor  destroy  the  republican  form  of 
government,  nor  substitute  another  in  its  place.  The 
court  declared :  "The  representative  character  of  the 
government  still  remains.  The  people  have  simply  re- 
served to  themselves  a  larger  share  of  legislative 
power."  Kadderly  v.  Portland,  1903,  44  Ore.,  118. 

An  interesting  discussion  as  to  what  constitutes  repre- 
sentative government  is  given  by  Madison  in  The  Fed^eral- 
Ist,  302. 

For  additional  judicial  decisions  on  direct  legislation, 
see  State  ex  rel.  Lavin  et  al.  v.  Bacon  et  al.,  1901,  14  S. 
D.,  284;  and  In  re  Pfahler,  1906,  88  P.,  270. 


10  THE  INITIATIVE  AND  REFERENDUM 


LAWS  AND  JUDICIAL  DECISIONS2 


Foreign  countries 

Switzerland*  Fed.  Const.  1874,  art.  89.  Federal 
laws,  enactments,  and  resolutions  are  to  be  passed  only 
by  the  agreement  of  the  two  councils.  Federal  laws 
must  be  submitted  for  acceptance  or  rejection  by  the 
people  if  the  demand  is  made  by  30,000  voters  or  by 
8  Cantons.  The  same  principle  applies  to  federal 
resolutions  which  have  a  general  application  and  which 
are  not  of  an  urgent  nature. 

art.  120.  When  either  council  of  the  Federal  As- 
sembly passes  a  resolution  for  the  complete  amendment 
of  the  federal  constitution  and  the  other  council  does 
not  agree,  or  when  50,000  voters  demand  the  complete 
amendment,  the  question  whether  the  federal  constitu- 
tion ought  to  be  amended  is,  in  either  case,  to  be  sub- 
mitted to  a  referendum  vote,  and  if  the  majority  of  the 
citizens  who  vote  pronounce  in  the  affirmative,  there 
must  be  a  new  election  of  both  councils  for  the  pur- 
pose of  preparing  the  complete  amendment. 

*The  present  study  concerns  itself  only  with  the  Initiative  and 
the  referendum  for  general  state  legislation.  Constitutional  pro- 
visions for  the  obligatory  referendum  on  special  state  questions. 
and  stnto  legislation  re'atlnj?  to  the  Initiative  and  referendum  In 
local  affairs,  are  not  considered. 

*  See  United  States.  57th  Con*.  2nd  sess.  House  of  Rep.  doc. 
no  1  (in  serial  no.  4440)  p.  082-94.  for  an  excellent  account  of 
the  Swiss  referend-im  and  initiative,  by  Arthur  S.  Hardy,  formerly 
U.  8.  minister  to  Switzerland. 


THE  INITIATIVE  AND  REFERENDUM  11 

Fed.  Law,  June  IT,  1874.  This  law  provides  the 
procedure  for  referendums. 

Fed.  Const.  (Amend.  1891)  art.  121.  Partial  amend- 
ment may  take  place  through  the  forms  of  popular 
initiative  or  of  those  required  for  passing  federal  laws. 
The  initiative  may  be  used  when  50,000  voters  present 
a  petition  for  the  enactment,  the  abolition,  or  the  altera- 
tion of  certain  articles  of  the  federal  constitution. 
When  several  subjects  are  proposed  for  amendment  or 
for  enactment  in  the  federal  constitution  by  means  of 
the  initiative,  each  must  form  the  subject  of  a  special 
petition.  Petitions  m'ay  be  presented  in  the  form  of 
general  suggestions  or  of  finished  bills.  When  a  peti- 
tion is  presented  in  the  form  of  a  general  suggestion, 
and  the  Federal  Assembly  agrees  thereto,  it  is  the  duty 
of  that  body  to  elaborate  a  partial  amendment  in  the 
sense  of  the  initiators,  and  to  refer  it  to  the  people  and 
the  Cantons  for  acceptance  or  rejection.  If  the  Federal 
Assembly  does  not  agree  to  the  petition,  then  the  ques- 
tion of  whether  there  shall  be  a  partial  amendment  at 
all  must  be  submitted  to  the  vote  of  the  people,  and  if 
the  majority  of  voters  express  themselves  in  the  affima- 
tive,  the  amendment  must  be  taken  in  hand  by  the  Fed- 
eral Assembly  in  the  sense  of  the  people. 

When  a  petition  is  presented  in  the  form  of  a  finished 
bill,  and  the  Federal  Assembly  agrees  thereto,  the  bill 
must  be  referred  to  the  people  and  the  Cantons  for  ac- 
ceptance or  rejection.  In  case  the  Federal  Assembly 
does  not  agree,  that  body  can  elaborate  a  bill  of  its 
own,  or  move  to  reject  the  petition  and  submit  its  own 


12  THE  INITIATIVE  AND  REFERENDUM 

bill  or  motion  to  the  vote  of  the  people  and  the  Cantons 
along  with  the  petition. 

art.  123.  The  amended  federal  constitution,  or  the 
amended  part  thereof,  is  to  be  in  force  when  it  has 
been  adopted  by  a  majority  of  the  citizens  who  take 
part  in  the  vote  thereon,  and  by  a  majority  of  the  states. 
In  making  up  a  majority  of  the  states  the  vote  of  a  half 
Canton  is  counted  as  a  half  vote. 

Fed.  Law,  June  27,  1892.  This  law  provides  the 
mode  of  procedure  for  the  initiative. 

The  Cantons.  All  the  Cantons  possess  the  initiative 
either  in  constitutional  or  legislative  matters,  or  both. 
All  except  Freiburg  have  some  form  of  the  referendum 
either  obligatory  or  optional,  or  both. 

Great  Britain.  The  question  of  introducing  the  ref- 
erendum to  settle  disputes  between  the  two  houses 
was  recently  discussed  in  the  British  Parliament. 

See  the  Parliamentary  Debates  for  June  24,  1907,  p. 
911,  922-3. 

Commonwealth  of  Australia.  Const.  1900.  This 
constitution  was  ratified  by  referendum  vote  taken  in 
the  separate  colonies  in  Australia  from  1898  to  1900. 
Under  chapter  8,  section  128,  of  the  constitution,  pro- 
posed amendments  nlust  be  submitted  to  a  referendum 
vote.  A  double  majority  is  required  for  ratification, 
namely,  a  majority  of  all  the  electors  voting  and  also  a 
majority  vote  in  more  than  half  of  the  states. 

Norway.  An  interesting  use  of  the  referendum  was 
made  by  the  people  of  Norway  in  their  separation  from 
Sweden.  A  Resolve  of  the  Storthing  on  July  28,  1905, 
provided  for  a  referendum  vote  of  the  electors  over  the 


THE  INITIATIVE  AND  REFERENDUM  13 

whole  country  to  decide  the  question  of  the  dissolution 
of  the  union.     The  referendum  took  place  on  August 
13,  1905,  and  resulted  in  a  practically  unanimous  vote 
for  the  dissolution. 
United  States 

Illinois.  Laws,  1901,  p.  198.  Under  this  law  the 
submission  of  any  question  for  an  expression  of  public 
opinion  may  be  secured  on  a  written  petition  signed  by 
10%  of  the  registered  voters  of  the  state.  The  petition 
must  be  filed  with  the  proper  election  officers  not  less 
than  sixty  days  before  the  election  at  which  the  ques- 
tion is  to  be  considered.  Not  more  than  three  propo- 
sitions may  be  submitted  at  the  same  election  and  they 
are  to  be  submitted  in  the  order  of  filing. 

Maine.  (Proposed  Const.  Amend.)  Resolves,  1907, 
c.  121.  This  amendment  applies  to  statutory  but  not 
to  constitutional  law.  Certain  specific  exemptions  are 
also  made  for  statutory  law. 

Emergency  bills  are  not  subject  to  the  referendum. 
Such  bills  may  include  measures  immediately  necessary 
for  the  preservation  of  the  public  peace,  health,  or 
safety,  but  may  not  include  (1)  an  infringement  of 
the  right  of  home  rule  for  municipalities;  (2)  a  fran- 
chise or  license  to  a  corporation  or  an  individual,  ex- 
tending longer  than  one  year;  or  (3)  provision  for  the 
sale,  or  purchase,  or  renting  for  more  than  five  years 
of  real  estate.  The  emergency  and  also  the  facts 
creating  the  same  must  be  set  forth  in  the  preamble  of 
the  act.  A  two-thirds  vote  of  all  the  members  elected 


14  THE  INITIATIVE  AND  REFERENDUM 

to  each  house  is  necessary  to  pass  an  emergency  meas- 
ure. 

Initiative  bills  may  propose  any  measure,  including 
bills  to  amend  or  repeal  emergency  legislation,  but  not 
to  amend  the  state  constitution.  The  petition  must 
set  forth  the  full  -  text  of  the  measure  proposed  and 
must  be  signed  by  not  less  than  12,000  electors.  Pro- 
posed measures  must  be  submitted  to  the  legislature, 
and  unless  they  are  enacted  without  change,  they  must 
'be  submitted  to  the  electors  together  with  any  amended 
form,  substitute,  01  recommendation  of  the  legislature, 
in  such  a  manner  that  the  people  can  choose  between 
the  competing  measures,  or  reject  both.  When  there 
are  competing  bills  and  neither  recedes  a  majority  of 
the  votes  given  for  and  against  both,  the  one  receiving 
the  most  votes  is  to  be  resubmitted  by  itself  at  the  next 
general  election,  to  be  held  not  less  than  sixty  days  after 
the  first  vote  thereon ;  but  no  measure  is  to  be  resub- 
mitted unless  it  has  received  more  than  one-third  of  the 
votes  given  for  and  against  both.  An  initiative  meas- 
ure enacted  by  the  legislature  without  change  is  not 
to  be  referred  unless  a  popular  vote  is  demanded  by  a 
referendum  petition.  If  the  governor  vetoes  any 
measure  initiated  by  the  people  and  passed  by  the  legis- 
lature without  change  and  his  veto  is  sustained  by  the 
legislature,  the  measure  is  to  be  referred  to  the  people 
at  the  next  general  election. 

The  legislature  may  enact  measures  expressly  con- 
ditioned upon  the  people's  ratification  by  referendum 
vote. 

Petitions  for  a  reference  of  any  act  passed  by  the 


THE  INITIATIVE  AND  REFERENDUM  15 

legislature  must  be  signed  by  not  less  than  10,000  elec- 
tors, and  must  be  filed  within  ninety  days  after  the  re- 
cess of  the  legislature.  The  governor  is  required  to 
give  notice  of  the  suspension  of  acts  through  referen- 
dum petitions  and  make  public  proclamation  of  the 
time  when  the  referred  measure  is  to  be  voted  upon. 
Referred  measures  do  not  take  effect  until  thirty  days 
after  the  governor  has  announced  their  ratification  by 
a  majority  of  the  electors  voting  thereon. 

Missouri.  (Proposed  Const.  Amend.4)  Laws, 
1907,  p.  452-3.  The  initiative  and  referendum  apply 
to  statutory  law  and  to  constitutional  amendments. 
Initiative  petitions  require  not  more  than  8%  of  the 
legal  voters  in  each  of  at  least  two-thirds  of  the  con- 
gressional districts  in  the  state.  Every  petition  must 
include  the  full  text  of  the  measure  proposed,  and  must 
be  filed  not  less  than  four  months  before  the  election 
at  which  it  is  to  be  voted  upon. 

The  referendum  may  be  ordered  upon  a  petition 
signed  by  5%  of  the  legal  voters  in  each  of  at  least 
two-thirds  of  the  congressional  districts,  or  by  the 
legislative  assembly.  Emergency  measures  are  exempt 
from  the  referendum.  Laws  making  appropriations 
for  the  state  government,  for  the  state  institutions,  and 
for  the  public  schools  are  also  exempt.  Referendum 
petitions  must  be  filed  not  more  than  ninety  days  after 
the  final  adjournment  of  the  legislative  session.  A 
referred  measure  becomes  a  law  when  approved  by  a 
majority  of  the  votes  cast  thereon. 


4  This  amendment  will  be  submitted  to  the  voters  in  Nov.,  1908, 
for  adoption  or  rejection. 


16  THE  INITIATIVE  AND  REFERENDUM 

Montana.  Const.  (Amend.  1906)  art.  5,  sec.  1. 
Direct  legislation  is  established  for  statutory,  but  not 
for  constitutional  law.  Certain  specific  exemptions 
are  also  made  for  statutory  law.  The  referendum  may 
not  be  invoked  for  emergency  measures. 

Initiative  petitions  require  8%  of  the  legal  voters 
from  two-fifths  of  the  whole  number  of  counties  of 
the  state.  They  must  include  the  full  text  of  the  meas- 
ure proposed,  and  must  be  filed  not  less  than  four 
months  before  the  election  at  which  they  are  to  be 
voted  upon. 

Referendum  petitions  require  5%  of  the  voters  from 
each  of  two-fifths  of  the  counties  and  they  must  be 
filed  not  later  than  six  months  after ^he  final  adjourn- 
ment of  the  legislative  session. 

Any  measure  referred  to  the  people  is  to  remain  in 
full  force  and  effect  unless  the  referendum  petition  is 
signed  by  15%  of  the  legal  voters  of  a  majority  of  the 
whole  number  of  the  counties  of  the  state,  in  which 
case,  the  law  remains  inoperative  until  it  is  passed  upon 
at  an  election  and  the  result  has  been  determined  as 
provided  by  law. 

Laws,  1907,  c.  62.  This  law  establishes  the  proced- 
ure for  carrying  the  direct  legislation  provisions  of  the 
constitution  into  effect.  It  definitely  sets  forth  the  re- 
quirements as  to  the  form  of  petitions ;  the  verification 
of  signatures ;  the  duties  of  officials  in  submitting  peti- 
tions ;  the  publication  and  distribution  of  the  title  and 
text  of  measures  and  of  arguments ;  the  manner  of  con- 
ducting the  elections  and  of  canvassing  the  vote ;  and 


THE  INITIATIVE  AND  REFERENDUM  17 

the  proclamation  of  the  governor  declaring  the  enact- 
ment of  the  approved  measures. 

Provision  is  made  for  the  official  distribution  of  the 
text  of  measures  to  all  the  electors  in  the  state.  In  ad- 
dition, arguments  for  or  against  any  proposed  meas- 
ures may  be  supplied  at  the  expense  of  the  parties  inter- 
ested; and  such  arguments  when  printed  in  pamphlet 
form  of  specified  size  and  style,  will  be  mailed  by  the 
state  with  the  official  copy  of  the  measure  to  each 
voter. 

Parties  filing  initiative  petitions  may  supply  argu- 
ments for  and  opposing  parties  may  supply  arguments 
against  the  measures  proposed.  In  the  case  of  refer- 
endums,  any  person  may  supply  arguments  for  or 
against  the  referred  measures ;  but  the  secretary  of 
state  is  not  obliged  to  receive  any  pamphlets  for  distri- 
bution unless  a  sufficient  number  is  furnished  to 
supply  one  to  every  legal  voter  in  the  state. 

Xcrada.  Const.  (Amend.,5  1904)  art.  19,  sees.  1 
and  2.  A  referendum  may  be  ordered  on  petition  of 
10%  of  the  voters.  A  referred  measure  becomes 
operative  when  approved  by  a  majority  vote. 

North  Dakota.  (Proposed  Const.  Amend.6)  Laws,. 
1907,  p.  451-3.  The  initiative  and  referendum  apply 
to  statutory  law  and  to  constitutional  amendments,  but 
the  same  constitutional  amendment  may  not  be  pro- 
posed oftener  than  once  in  ten  years. 

Initiative  petitions  require  not  more  than  8%  of 
the  legal  voters,  they  must  include  the  full  text  of  the 


8  This  amendment  does  not  provide  for  the  initiative,  and  the 
procedure  provided  for  the  referendum  is  indefinite. 

6  This  amendment  must  also  be  passed  by  the  next  legislature- 
before  being  submitted  to  the  people  for  adoption  or  rejection. 


18  THE  INITIATIVE  AND  REFERENDUM 

measure  proposed,  and  must  be  filed  not  less  than 
thirty  days  before  any  regular  session  of  the  legislature. 
The  proposed  measure  must  be  transmitted  to  the 
legislature  as  soon  as  it  convenes.  Initiative  meas- 
ures take  precedence  over  all  other  measures  in  the 
legislative  assembly,  except  appropriation  bills,  and 
must  be  enacted  or  rejected  without  change  or  amend- 
ment within  forty  days.  Any  initiative  measure 
enacted  by  the  legislature  is  subject  to  referendum  peti- 
tion, or  it  may  be  referred  by  the  legislature.  If  it  is 
rejected,  or  no  action  is  taken  upon  it  by  the  legis- 
lature within  the  forty  day  limit,  it  must  be  submitted 
to  the  people  for  approval  or  rejection  at  the  next 
regular  election.  The  legislature  m*y  reject  any  meas- 
ure proposed  by  initiative  petition  and  propose  a  com- 
peting bill  to  accomplish  the  same  purpose.  This  gives 
opportunity  for  publicity,  for  committee  hearings, 
for  the  taking  of  testimony,  for  debate,  and  for  delib- 
erative consideration.  When  an  initiative  measure  and 
a  competing  bill  are  both  proposed,  they  must  both  be 
submitted  to  the  people.  In  case  conflicting  measures 
submitted  at  the  same  election  are  both  approved  by  a 
majority  of  the  votes  severally  cast  for  and  against  the 
same,  the  one  receiving  the  highest  number  of  affirma- 
tive votes  becomes  valid  and  the  other  is  thereby  re- 
jected. 

The  referendum  does  not  apply  to  emergency  meas- 
ures. However,  provision  is  made  against  an  undue 
use  of  the  emergency  clause  by  the  requirement  that 
the  facts  creating  the  emergency  be  stated  in  one  sec- 
tion of  the  bill,  and  if  upon  an  aye  and  nay  vote  in 


THE  INITIATIVE  AND  REFERENDUM  19 

each  house,  two-thirds  of  all  the  members  elected  to 
each  house  vote  on  a  separate  roll  call  in  favor  of  the 
law  going  into  instant  operation,  it  becomes  operative 
upon  approval  of  the  governor. 

Referendum  petitions  require  not  more  than  5%  of 
the  legal  voters  and  must  be  filed  not  more  than  ninety 
•days  after  the  final  adjournment  of  the  legislature. 
Any  constitutional  amendment  or  other  measure  re- 
ferred to  the  people  is  to  take  effect  when  approved  by 
a  majority  of  the  votes  cast  thereon,  and  is  to  be  in 
force  from  the  date  of  the  official  declaration  of  the 
-vote. 

This  amendment  is  self  executing,  but  legislation 
-may  be  enacted  to  facilitate  its  operation. 

Oklahoma.  Const.  1907,  art.  5,  sees.  1—1,  6-8,  and 
-art.  24,  sec.  3.  The  initiative  and  referendum  apply 
to  constitutional  and  to  statutory  law.  Emergency 
.measures  are  exempt  from  the  referendum  provisions. 

Legislative  measures  may  be  proposed  by  8%,  and 
amendments  to  the  constitution  by  15%  of  the  legal 
voters.  Initiative  petitions  must  contain  the  full  text 
•of  the  measure  proposed.  They  must,  be  filed  with  the 
secretary  of  state  and  be  addressed  to  the  governor 
"who  must  submit  them  to  the  people. 

A  referendum  may  be  ordered  by  o%  of  the  legal 
"voters.  Petitions  for  referred  measures  must  be  filed 
not  more  than  ninety  days  after  the  final  adjournment 
of  the  legislature. 

Initiative  measures  require  a  majority  of  the  votes 
-cast  at  the  election,  while  only  a  majority  of  the  votes 
cast  on  a  referred  measure  are  necessary  to  give  it  ef- 


20  THE  INITIATIVE  AND  REFERENDUM 

feet.  The  referendum  may  be  demanded  by  the  peo- 
ple against  one  or  more  items,  sections,  or  parts  of  any 
act  of  the  legislature. 

The  explicit  statement  is  also  inserted  that  "the 
reservation  of  the  powers  of  the  initiative  and  refer- 
endum shall  not  deprive  the  legislature  of  the  right  to 
repeal  any  law,  or  propose  or  pass  any  measure  which 
may  be  consistent  with  the  constitution  of  the  state 
and  the  constitution  of  the  United  States." 

In  the  light  of  the  experience  of  older  states  that  have 
adopted  direct  legislation  in  state  affairs,  this  statement 
seems  superfluous.  The  provisions  of  the  state  constitu- 
tions which  reserve  direct  legislative  power  for  the  people 
do  not  contemplate  the  restriction  of  initiative  power  in 
the  legislature;  the  power  constitutionally  delegated  to 
representatives  to  initiate  measures  or-to  repeal  laws  still 
remains.  The  people  merely  reserve  the  right  to  propose 
measures  and  to  enact  or  reject  either  initiative  or  legis- 
lative measures  independent  of  the  legislative  assembly. 
For  a  discussion  of  this  point,  see  Kadderly  v.  Portland, 
1903,  44  Or.  118. 

Oregon.  Const.  (Amend.,  1902)  art.  4,  sec.  1.  The 
initiative  and  referendum  apply  to  constitutional  and 
to  statutory  law,  but  the  referendum  may  not  be  in- 
voked for  emergency  measures. 

Every  initiative  petition  must  contain  the  full  text  of 
the  measure  proposed,  must  be  signed  by  at  least  8% 
of  the  legal  voters,  and  must  be  filed  not  less  than  four 
months  before  the  election  at  which  it  is  to  be  voted 
upon. 

Referendum  petitions  must  be  signed  by  at  least  5% 
of  the  voters,  and  must  be  filed  not  more  than  ninety 
days  after  the  final  adjournment  of  the  legislative  as- 
sembly. 

Any  measure  referred  to  the  people  becomes  a  law 


THE  INITIATIVE  AND  REFERENDUM  21 

Avhen  it  is  approved  by  a  majority  of  the  votes  cast 
thereon. 

The  initiative  and  referendum  amendment  does  not 
.abolish  or  destroy  the  republican  form  of  government  or 
substitute  another  in  its  place.  The  representative  char- 
acter of  the  government  still  remains 

Under  this  amendment,  it  is  true,  the  people  may  ex- 
ercise a  legislative  power  and  may  in  effect  veto  bills 
passed  and  approved  by  the  legislature  and  the  governor, 
"but  the  legislative  and  executive  departments  are  not  de- 
stroyed ....  Laws  proposed  and  enacted  by  the  people  under 
the  initiative  laws  of  the  amendment  are  subject  to  the 
same  constitutional  limitations  as  other  statutes  and  may 
be  amended  or  repealed  by  the  legislature  at  will.  Kad- 
derly  v.  Portland,  1903,  44  Or.  118. 

Laws,  1907,  c.  226.  This  act  facilitates  the  opera- 
tion of  the  initiative  and  referendum  powers  reserved 
by  the  people,  regulates  elections  thereunder,  and  pro- 
vides penalties  for  violations.  The  law  definitely  pre- 
scribes the  form  of  initiative  and  referendum  petitions ; 
the  manner  of  verifying  signatures ;  the  duties  of  offi- 
cials in  submitting  measures ;  the  method  of  canvass- 
ing and  making  returns ;  and  the  declaration  of  the 
enactment  of  approved  measures. 

The  following  definite  provision  is  made  for  the 
publication  and  distribution  of  the  text  of  proposed 
measures  and  for  arguments  advocating  or  opposing 
the  questions  submitted : — Before  any  election  at  which 
any  proposed  law  or  amendment  to  the  constitution  is 
to  be  submitted  to  the  people,  the  secretary  of  state  is 
required  to  have  printed  in  pamphlet  form  the  text  of 
each  measure  to  be  submitted, together  with  the  title  as 
it  will  appear  on  the  official  ballot.  Parties  filing  ini- 
tiative petitions  have  the  right  to  file  any  arguments 
advocating  such  measures.  In  the  case  of  referen- 


22  THE  INITIATIVE  AND  REFERENDUM 

dums,  any  person  has  the  right  to  file  arguments  for 
or  against  the  referred  measures.  The  parties  offer- 
ing arguments  for  distribution  must  pay  all  the  ex- 
pense for  paper  and  printing  to  supply  one  copy  with 
every  copy  of  the  measure  to  be  printed  by  the  state. 
The  cost  of  printing,  binding,  and  distributing  the 
measures  proposed,  and  of  binding  and  distributing 
the  arguments,  are  to  be  paid  by  the  state  as  a  part  of 
the  state  printing.  Within  a  specified  time  before  any 
election  at  which  measures  are  to  be  voted  upon,  the 
secretary  of  state  is  required  to  transmit  copies  of  each 
measure  together  with  the  arguments  submitted,  to  the 
voters  within  the  state. 

See  Stevens  v.  Benson,  1907,  91  P.  577. 

South  Dakota.  Const.  (Amend.,  1898)  art.  3,  sec. 
1.  Under  this  amendment  the  people  expressly  re- 
serve the  right  to  propose  measures  which  the  legisla- 
.ture  is  required  to  enact  and  to  submit  to  a  vote  of  the 
electors.  They  also  reserve  the  right  to  require  a  ref- 
erendum on  any  law  which  the  legislature  may  have 
enacted,  except  laws  necessary  for  the  immediate 
preservation  of  the  public  peace,  health,  or  safety,  and 
laws  for  the  support  of  the  state  government  and  its 
existing  public  institutions. 

Not  more  than  5%  of  the  qualified  voters  are  re- 
quired to  invoke  either  the  initiative  or  the  referen- 
dum. 

Pol.  Code,  1903,  sees.  21-7.  Initiative  petitions 
must  contain  the  substance  of  the  law  desired.  Refer- 
endum petitions  must  describe  the  law  to  be  submitted 
by  setting  forth  the  title  together  with  the  date  of  pas- 
age  and  approval ;  such  petitions  must  be  filed  within- 


THE  INITIATIVE  AND  REFERENDUM  23 

ninety  days  after  the  adjournment  of  the  legislature. 
Initiative  or  referendum  measures  approved  by  a  ma- 
jority of  the  votes  cast  thereon  become  law  and  are  to 
be  in  force  immediately  after  the  result  has  been  offi- 
cially determined.  (Laws,  1899,  c.  93.) 

The  legislature  having  declared  that  the  provisions  of 
an  act  are  necessary  for  the  immediate  preservation  and 
support  of  the  existing  public  institutions  of  the  State, 
that  declaration  is  conclusive  upon  this  court.  Such  an  act 
is  clearly  not  within  the  referendum  clause  of  sec.  1  as 
amended,  of  art.  3  of  the  constitution.  State  ex  rel.  Lavin 
et  al.  v.  Bacon  et  al.  1901,  14  South  Dakota,  394. 

Texas.  Laws,  1905,  c.  11,  sec.  140.  Under  the 
primary  election  law,  10%  of  the  voters  in  any  politi- 
cal party  may  propose  policies  and  candidates  and  se- 
cure a  direct  party  vote  thereon.  Petitions  are  to  be 
filed  with  the  chairman  of  the  county  or  precinct  execu- 
tive committee  at  least  five  days  before  the  tickets  are 
to  be  printed  and  the  chairman  may  require  a  sworn 
statement  that  the  names  of  the  applicants  are  genuine. 

The  number  of  signatures  required  for  a  petition  is 
to  be  determined  by  the  votes  cast  for  the  party  nom- 
inee for  governor  at  the  preceding  election.  It  is  the 
duty  of  the  chairman  to  submit  any  proposition  for 
which  a  petition  is  filed,  and  the  delegates  selected  at 
that  time  are  to  be  considered  instructed  for  which- 
ever proposition  a  majority  of  the  votes  is  cast.  Pro- 
vision is  also  made  that  all  additional  expense  of  print- 
ing any  proposition  on  the  official  primary  ballot  is  to 
be  paid  for  by  the  parties  requesting  the  same. 

Utah.  Const.  (Amend.  1900)  art.  6,  sees  1  and  22. 
This  amendment  provides  for  direct  legislation,  but 
the  amendment  is  not  self  executing  and  three  succes- 
sive legislatures  have  refused  to  put  it  in  force. 


24  THE  INITIATIVE  AND  REFERENDUM 


SUMMARY 


The  leading  provisions  relating  to  direct  state  legis- 
lation may  be  summarized  under  the  scope  of  direct 
legislation,  limitations  on  the  re-submission  of  meas- 
.ures,  procedure  for  initiative  petitions,  procedure  for 
reference  of  measures,  enactment  of  referred  meas- 
ures, and  penalties. 

SCOPE  OF  DIRECT  LEGISLATION 

Iii  the  United  States  direct  legislation  has  been  ap- 
plied to  constitutional  and  to  statutory  law ;  it  has  also 
been  employed  to  obtain  expressions  of  public  opinion 
on  state  affairs,  and  to  secure  instructions  as  to  party 
policy  within  the  political  parties. 

Constitutional  law 

The  constitutional  amendments  for  direct  legislation 
in  state  affairs  apply  generally  to  constitutional  law. 

Exceptions.  Some  of  the  states  exempt  constitu- 
tional amendments  from  the  operation  of  the  initiative. 

See  Mont.  Const.  (Amend.  1906)  art.  5,  sec.  1;  Me.  (Pro- 
posed Const.  Amend.)  Resolves,  1907,  c.  121. 

Statutory  law 

As  regards  statutory  law,  most  of  the  amendments 
provide  for  specific  exceptions  to  the  use  of  direct  legis- 
lation and  also  provide  for  emergency  measures. 


THE  INITIATIVE  AND  REFERENDUM  25 

Exceptions.  The  specific  exceptions  generally  re- 
late to  appropriations  for  the  current  expenses  of  the 
state  government,  for  the  maintenance  of  the  state  in- 
stitutions, and  for  the  support  of  the  public  schools. 

Compare  the  provisions  of  Me.,  Mo.,  Mont,  and  S.  D. 

Emergency  measures.  Laws  necessary  for  the  im- 
mediate preservation  of  the  public  peace,  health,  or 
safety,  are  generally  exempt  from  the  operation  of  the 
referendum. 

See  Me.  (Proposed  Const.  Amend.)  Resolves,  1907,  c. 
121;  Mo.  (Proposed  Const.  Amend.)  Laws,  1907,  p.  452-3; 
Mont.  Const.  (Amend.  1906)  art.  5,  sec.  1;  N.  D.  (Pro- 
posed Const.  Amend.)  Laws,  1907,  p.  451-3;  Okla.  Const. 
1907,  art.  5,  sec.  2;  Ore.  Const.  (Amend.  1902)  art.  4,  sec. 
1;  S.  D.  Const.  (Amend.  1898)  art.  3,  sec.  1. 

A  safeguard  against  the  undue  use  of  emergency 
measures  is  provided  in  a  number  of  cases  by  requir- 
ing the  declaration  of  the  emergency  and  a  separate 
roll  call  and  vote  on  the  question  of  the  emergency. 
A  two-thirds  majority,  on  an  aye  and  nay  vote,  of  all 
the  members  elected  to  each  house  is  also  sometimes 
required  for  the  passage  of  emergency  bills. 

Compare  the  provisions  of  Me.  and  N.  D. 

A  further  safeguard  against  the  abuse  of  the  emer- 
gency clause  by  the  legislature  is  secured  by  an 
enumeration  of  laws  which  may  not  be  enacted  as 
emergency  measures. 

Thus,  the  proposed  amendment  for  Maine  provides  that 
an  emergency  bill  shall  not  include  (1)  the  infringement 
of  the  right  of  home  rule  for  municipalities^  (2)  a  fran- 
chise or  a  license  to  a  corporation  or  an  individual  to  ex- 
tend longer  than  one  year;  or  (3)  provision  for  the  sale 
or  purchase  or  renting  for  more  than  five  years  of  real 
estate. 


26  THE  INITIATIVE  AND  REFERENDUM 

The  courts  have  uniformly  held  that  the  question  as 
to  whether  a  law  is  necessary  for  the  immediate  pres- 
ervation of  the  public  peace,  health,  or  safety,  is  for  the 
legislature  and  is  not  subject  to  judicial  review. 

See  State  v.  Bacon,  1901,  14  S.  D.,  394;  and  Kadderly 
v.  Portland,  1903,  44  Ore.,  118. 

Public  opinion 

Public  opinion  system.  Under  public  opinion  laws 
pressure  may  be  brought  to  bear  upon  legislators  in 
the  enactment  of  law. 

See  111.  Laws,  1901,  p.  198. 

Advisory  system.     The  advisory  system  goes  farther 
in  the  same  direction  and  instructs  representatives  as 
to  legislative  action. 
Party  policy 

Advisory  system  within  the  parties.  The  use  of  the 
advisory  system  within  the  parties  at  primary  elections 
enables  the  voters  in  any  political  party  to  propose  poli- 
cies and  candidates  and  secure  a  direct  party  vote 
thereon. 

See  Tex.  Laws,  1905,  c.  11,  sec.  140. 

LIMITATIONS  OX   THE  RESUBMISSION   OF   MEASl  RES 

The  possible  abuse  of  direct  legislation  through  a 
frequent  resubmission  of  defeated  propositions,  is  pro- 
vided against  in  a  number  of  states. 

N.  D.  (Proposed  Const.  Amend.  1907)  provides  that  the 
same  constitutional  amendment  shall  not  be  proposed 
oftener  than  once  in  ten  years. 

In  Okla.  Const.  1907,  art.  5,  sec.  6,  any  measure  rejected 
by  the  people  cannot  be  again  proposed  by  the  initiative 
within  three  years  by  less  than  25%  of  the  legal  voters. 


THE  INITIATIVE  AND  REFERENDUM  27 

PROCEDURE  FOR  INITIATIVE  PETITIONS 

The  procedure  for  initiative  measures  varies  in  the 
several  states.  Differences  exist  in  the  requirements 
for  publicity,  the  completion  of  the  petition,  the  trans- 
mission of  measures  to  the  legislature,  the  provision 
for  competing  bills,  and  the  reference  of  initiative  and 
of  conflicting  measures. 
Publicity 

Publicity  is  secured  through  the  publication  of  the 
text  of  initiative  measures  and  the  distribution  of  ar- 
guments for  and  against  proposed  bills. 

Publication  of  text  of  measure.  Most  of  the  states 
require  the  publication  of  the  full  text  of  initiative  and 
referendum  measures. 

Compare  the  provisions  for  Me.,  Mo.,  Mont.,  N.  D.,  Okla., 
Ore.,  and  S.  D. 

Distribution  of  arguments.  Certain  states  also  make 
provision  for  the  distribution  of  arguments. 

For  elaborate  provisions  for  the  distribution  of  argu- 
ments for  and  against  proposed  measures,  see  Mont.  Laws, 
1907,  c.  62,  and  Ore.  Laws,  1907,  c.  226. 

Completion  of  petition 

The  percentage  of  voters  required  to  sign  petitions, 
the  basis  of  the  percentage,  the  verification  of  signa- 
tures, and  the  method  of  filing  petitions,  vary  consid- 
erably with  the  different  states. 

Percentage  of  voters.     The  percentage  ranges  from 

$%  to  15%. 

The  percentages  for  the  different  states  are  as  follows: 
8  per  cent  for  Mo.,  Mont.,  N.  D.,  Okla.,  and  Ore.;  and  5 
per  cent  for  S.  D.  In  Mo.  the  8  per  cent  is  required  only 
from  each  of  at  least  two-thirds  of  the  congressional  dis- 
tricts, while  in  Mont,  at  least  two-fifths  of  the  whole 
number  of  counties  must  each  furnish  8  per  cent  toward 


28  THE  INITIATIVE  AND  REFERENDUM 

making  up  the  required  8  per  cent  for  the  entire  state. 
Okla.  requires  15  per  cent  to  propose  constitutional  amend- 
ments. Instead  of  requiring  a  certain  percentage,  Me. 
requires  a  fixed  number  of  12,000  signatures  for  initiative 
measures. 

Basis  of  percentage.  The  percentage  required  is 
uniformly  based  upon  the  vote  cast  at  the  last  preced- 
ing general  election. 

In  S.  D.  and  Mont,  the  per  cent  is  based  on  the  vote  for 
governor;  in  Ore.,  Mo.,  and  N.  D.,  on  the  vote  for  justices 
of  the  supreme  court;  and  in  Okla.  on  the  vote  for  the 
state  office  receiving  the  highest  number  of  votes. 

Verification  of  signatures.  The  methods  for  verify- 
ing signatures  are  definitely  prescribed  in  the  laws  en- 
acted to  facilitate  the  operation  of  the -several  amend- 
ments. 

See  S.  D.  Laws,  1899,  c.  93;  Ore.  La^fs,  1907,  c.  226;  and 
Mont.  Laws,  1907,  c.  62. 

Filing.  Provision  is  generally  made  that  initiative 
petitions  be  filed  with  the  secretary  of  state.  The  time 
for  filing  varies  according  to  whether  the  petition  is  to 
be  presented  to  the  legislature,  or  is  to  be  voted  upon 
by  the  people  without  legislative  consideration. 

Time.  The  time  for  filing  is  not  less  than  four  month* 
before  the  election  in  Ore.,  Mont,  and  Mo.;  not  less  than 
thirty  days  before  any  regular  session  in  N.  D.;  and  at 
least  thirty  days  before  the  close  of  the  session  in  Me. 

Transmission  of  measures  to  legislature 

The  requirement  that  all  proposed  measures  be 
transmitted  to  the  legislature  gives  opportunity  for 
public  hearings,  for  testimony,  for  debate,  and  for  de- 
liberative consideration. 

Compare  the  provisions  of  Me.  (Proposed  Const.  Amend.) 
Laws,  1907,  c.  121,  and  of  N.  D.  (Proposed  Const.  Amend.)- 
Laws,  1907,  p.  451-3. 


THE  INITIATIVE  AND  REFERENDUM  29 

Precedence  of  initiative  measures.  Provision  is 
sometimes  made  that  initiative  measures  take  prece- 
dence over  all  other  measures  in  the  legislature  except 
appropriation  bills. 

See  the  proposed  amendment  for  N.  D. 

Limitations  on  legislative  action.  The  provision 
that  the  legislature  must  enact  the  measure  submitted 
is  a  restriction  found  in  only  one  of  the  states. 

S.  D.  Const.   (Amend.  1898)   art.  3,  sec.  1. 

N.  D.  requires  that  the  legislature  enact  or  reject  the 
proposed  measure  within  forty  days. 

Provision  for  competing  bills 

An  important  feature  in  several  states  is  the  provi- 
sion that  the  legislature  may  submit  a  competing  bill 
if  it  disapproves  of  the  initiative  measure.  This  af- 
fords opportunity  for  deliberative  consideration  of  con- 
flicting measures,  and  to  some  extent  protects  the 
people  against  the  bills  of  extremists. 
Reference  of  initiative  measures  and  of  com- 
peting bills 

Competing  bills  are  to  be  submitted  with  initiative 
measures  so  that  the  electors  may  choose  between  them 
or  reject  both. 

See  Me.  (Proposed  Const.  Amend.)  Resolves,  1907.  c. 
121,  and  N.  D.  (Proposed  Const.  Amend.)  Laws,  1907,  p. 
451-3. 

PROCEDURE  FOR  REFERENCE  OF   MEASURES 

Measures  may  be  referred  either  by  petition  or  by 
legislative  action. 
Reference  by  petition 

The  requirements  for  reference  by  petition  vary  both 


30  THE  INITIATIVE  AND  REFERENDUM 

as  to  the  percentage  of  voters  required  and  the  man- 
ner of  filing  petitions. 

Percentage  of  voters.  The  required  percentage 
ranges  from  5%  to  10%. 

The  percentages  are  5  per  cent  for  Mo.,  Mont.,  N.  D.. 
Okla.,  Ore.,  and  S.  D.,  while  Nev.  requires  10  per  cent. 
The  requirements  for  two-thirds  of  the  congressional  dis- 
tricts in  Mo.,  and  for  two-fifths  of  the  counties  in  Mont, 
holds  for  referendum  as  well  as  for  initiative  petitions. 
Me.  requires  a  fixed  number  of  10,000  signatures. 

Mont,  has  a  provision  that  any  measure  referred  to  the 
people  is  to  remain  in  full  force  unless  the  petition  is 
signed  by  15  per  cent  of  the  legal  voters  of  a  majority  of 
the  whole  number  of  counties  in  the  state,  in  which  case 
the  law  remains  inoperative  until  it  is  passed  upon  at  an 
election  and  the  result  is  officially  determined. 

Basis  of  percentage.  The  basis  of  the  required  per- 
centage is  the  same  as  for  initiative  petitions. 

Filing.  Petitions  are  to  be  filed  with  the  secretary 
of  state  within  a  specified  time. 

Time.  The  time  for  filing  is  not  less  than  ninety  days 
after  the  legislative  session  in  S.  D.,  Ore.,  Okla.,  Mo.,  Me., 
and  N.  D.;  and  not  later  than  six  months  after  the  session 
in  Mont. 

Reference  by  legislative  action 

The  legislature  may  enact  measures  expressly  con- 
ditioned upon  the  people's  ratification  by  referendum 
vote. 

Compare  the  constitutional  provisions  of  Ore.,  Mont.r 
and  Okla.,  and  the  proposed  amendments  for  Me.,  Mo.,  and 
N.  D. 

Vote  required.  Montana  requires  a  majority  vote  of  tue 
members  elect  to  refer  an  act  of  the  legislative  assembly. 

Duty  of  officials 

In  submitting  initiative  and  referendum  petitions  to 
a  vote  of  •  the  people,  the  secretary  of  state  and  all 
other  officers  are  to  be  guided  by  the  general  laws  un- 


THE  INITIATIVE  AND  REFERENDUM  31 

til  legislation  is  especially  provided. 

Compare  the  provisions  for  Me.,  Mo.,  Mont.,  N.  D.,  and 
Ore. 

ENACTMENT   OF   REFERRED    MEASURES 

Elections  for  submission  of  measures 

Measures  may  be  referred  for  enactment  or  rejec- 
tion at  general  or  at  special  elections. 

General  Elections.  S.  D.  provides  for  submission  of 
measures  only  at  general  elections. 

Special  elections.  Provision  is  made  for  special  elec- 
tions to  be  ordered,  by  the  legislature  in  Mo.,  Mont,  and 
Ore.;  by  law  in  N.  D.;  and  by  the  legislature  or  the  gov- 
ernor in  Okla.  and  Me.  Under  the  Me.  provision  the  gov- 
ernor must  order  a  special  election,  if  so  requested  in  the 
petition. 

Veto  power 

The  veto  power  of  the  governor  does  not  extend  to 
measures  referred  to  the  people. 

See  S.  D.,  Ore.,  Mont.,  Okla.,  Me.,  Mo.,  and  N.  D. 

The  proposed  amendment  for  Me.  requires  that  if  any 
measure  initiated  by  the  people  and  passed  by  the  legisla- 
ture without  change,  is  vetoed  by  the  governor,  and  if  his 
veto  is  sustained  by  the  legislature,  the  measure  must  be 
referred  to  the  people  at  the  next  general  election. 

When  operative 

The  provisions  for  the  several  states  generally  re- 
quire that  any  measure  referred  to  a  vote  of  the  people 
is  to  become  law  and  be  in  force  from  the  date  of  the 
official  declaration  that  it  has  been  approved  by  a  ma- 
jority of  the  votes  cast  thereon. 

In  Okla.  initiative  measures  must  be  approved  by  a 
majority  of  the  votes  cast  at  the  election. 

In  Me.  provision  is  made  that  initiative  measures  en- 
acted by  the  legislature  without  change,  are  not  to  be  re- 
ferred unless  a  referendum  vote  is  demanded.  When  in- 
itiative and  competing  bills  are  submitted  at  the  same 
election,  and  neither  receives  a  majority  of  the  votes 
given  for  and  against  both,  the  one  receiving  the  most 


32  THE  INITIATIVE  AND  REFERENDUM 

votes  is  to  be  resubmitted  by  itself;  but  no  measure  is  to 
be  resubmitted  unless  it  received  more  than  one-third  of 
the  votes. 

Under  the  N.  D.  provision,  if  conflicting  measures  sub- 
mitted at  the  same  election  are  both  approved  by  a  major- 
ity severally  cast  for  and  against  each,  the  one  receiving 
the  highest  number  of  affirmative  votes  is  enacted. 

PENALTIES 

The  laws  enacted  to  facilitate  the  operation  of  the 
direct  legislation  amendments  provide  penalties  for  the 
unlawful  signing  of  petitions. 

In  S.  D.,  Ore.,  and  Mont.,  the  unlawful  signing  of  in- 
itiative or  referendum  petitions  is  punishable  by  fine,  or 
by  imprisonment,  or  both,  in  the  discretion  of  the  court. 
In  S.  D.  (Laws,  1899,  c.  93)  the  fine  is  not  to  exceed 
$500.00  nor  the  imprisonment  five  years.  In  Ore.  (Laws, 
1907,  c.  226 )  and  in  Mont.  (Laws,  1907,  c.  62)  the  fine  is 
fixed  at  the  same  limit  and  the  imprisonment  is  not  to 
exceed  two  years. 


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